Citation Nr: 0623874
Decision Date: 08/08/06 Archive Date: 08/18/06
DOCKET NO. 05-15 474 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to a total rating based upon individual
unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The veteran had active service from August 1968 to March 1970
and February 1971 to July 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2004 rating determination of the
Columbia, South Carolina, Department of Veterans Affairs (VA)
Regional Office (RO).
The veteran appeared at a hearing before the undersigned
Acting Veterans Law Judge in July 2005.
REMAND
The Board notes that service connection is currently in
effect for diabetes mellitus, to include erectile
dysfunction, rated as 20 percent disabling; peripheral
neuropathy of the left lower extremity, rated as 20 percent
disabling; and peripheral neuropathy of the right lower
extremity, rated as 20 percent disabling. The combined
schedular disability evaluation for these disorders is 50
percent.
The Board notes that at the time of his July 2005 hearing,
the veteran testified that his service-connected disorders
had become progressively worse since the time of his last
comprehensive VA examination.
The Board further observes that the veteran reported
receiving continuing treatment at a VA facility for his
service-connected disorders at the time of the hearing. It
appears that the most recent VA treatment records associated
with the claims folder, other than several recent treatment
records forwarded by the veteran, date back to the early part
of 2004. The Board notes that in Bell v. Derwinski, 2 Vet.
App. 611 (1992), VA was deemed to have constructive knowledge
of certain documents which were generated by VA agents or
employees. Id. at 612- 13. If those documents predated a
Board decision on appeal, were within VA's control, and could
reasonably be expected to be part of the record, then "such
documents were, in contemplation of law, before the Secretary
and the Board and should be included in the record." Id. at
613. If such material could be determinative of the claim, a
remand for readjudication is in order. Dunn v. West, 11 Vet.
App. 462, 466 (1998).
The Court has held that in the case of a claim for total
rating based on individual unemployability, the duty to
assist requires that VA obtain an examination which includes
an opinion on what effect the veteran's service-connected
disability has on his ability to work. 38 U.S.C. § 5107(a);
Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§
3.103(a), 3.326, 3.327, 4.16(a) (2005). The Board does note
that there is a one line sentence from a VA physician
indicating that the veteran is unemployable due to his
service-connected disabilities; however, the Board does not
find this statement sufficient for properly rating the
current claim as there has been no basis for the opinion that
has been provided.
Accordingly, the case is REMANDED to the RO via the Appeals
Management Center (AMC) in Washington, D.C., for the
following action:
1. The AMC should obtain copies of all
treatment records of the veteran from the
Wm. Jennings Bryan Dorn VA Medical Center
from 2004 to the present and associate
them with the claims file.
2. The AMC should schedule the veteran
for appropriate VA examinations to
determine the impact of the veteran's
service-connected disabilities on his
ability to maintain gainful employment.
The claims folder must be made available
and be reviewed by the examiner. The
examiner(s) is(are) requested to render
the following opinion: Do the veteran's
service-connected disabilities preclude
employment consistent with his education
and occupational experience? The
examiner(s) should provide complete
detailed rationale for each opinion
rendered.
3. The AMC should readjudicate the claim
for TDIU, including if the veteran does
not meet the percentage requirements of 38
C.F.R. § 4.16(a), whether referral for
extraschedular consideration is warranted.
If the claim remains denied, the veteran
and his representative should be furnished
a supplemental statement of the case.
Thereafter, the case should be returned to
the Board if otherwise appropriate.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
David L. Wight
Acting Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).